Gauhati HC Reinstates Assam Police Constable Removed From Service Without Hearing Based On Enquiry Report Alleging Unauthorised Leave

The Gauhati High Court recently set aside an order of removal from service of a Constable of Assam Police on the allegation of unauthorised leave or overstay in leave, on the ground that the disciplinary authority acted on the enquiry report without giving a reasonable opportunity to the said constable to submit his reply on the said report.

The single-judge bench of Justice Sanjay Kumar Medhi observed:

“With regard to the second show cause notice dated 06.05.2014 by which the disciplinary authority had asked for the views of the petitioner on the Enquiry Report, it appears that the said authority had stated that the findings of the Enquiry Officer were already concurred with. The aforesaid action on the part of the Disciplinary Authority is not in consonance with the requirement of affording a reasonable opportunity to a delinquent to safeguard himself as such opportunity is required to be given at all stages of a Disciplinary Proceeding.”

The petitioner was appointed as a constable in the 16^th Assam Police (IR) Battalion with effect from July 05, 2009. He was transferred and was last posted in the district of Karimganj. A disciplinary proceeding was initiated against the petitioner on the allegation of unauthorised absence or over stay of leave.

It was the case of the petitioner that certain medical certificates which were relied upon in the proceeding were sent for verification and on such verification, no manipulation was detected. However, the opinion of the Medical Board was relied upon by which it was opined that the ailment noted was not sufficient for unauthorised absence or overstay in leave. It was the further case of the petitioner that the proceeding was not brought to a logical conclusion and yet he was not allowed to join his services.

Earlier, in 2015, the petitioner had filed a writ petition before the High Court praying for the completion of disciplinary proceedings which was also followed by the filing of a contempt case in 2018. However, during the pendency of the contempt case, the impugned order of the removal of service dated May 12, 2014 was produced. The petitioner challenged the said order of removal of service through the present petition.

The Counsel appearing for the petitioner submitted that the allegations were not very grave in nature against the petitioner and he had bona fide reasons for not being able to rejoin his services after the expiry of the leave period. It was also submitted that at no point in time the petitioner was declared as a deserter and he on his own volition had gone to rejoin his services which was declined.

It was submitted that notwithstanding the grounds of challenge on the merits of the charge and the procedure adopted in the enquiry, there was a gross irregularity as well as prejudice caused by the action of the disciplinary authority while issuing the second show cause notice dated May 06, 2014.

It was further contended that while the report of the enquiry was forwarded to the petitioner to have his views, the disciplinary authority had already come to a finding of agreement with the views of the enquiry officer. It was argued that while there is no requirement to seek the views of a delinquent on the nature of the penalties which is proposed to be imposed, the requirement to give the delinquent an opportunity to represent against the report of the enquiry officer is mandatory in nature.

It was submitted that the furnishing of a copy of the enquiry report is necessary to ensure that adequate safeguard is given to a delinquent facing a disciplinary proceeding.

On the other hand, the State Counsel submitted that the petitioner was a member of a disciplined force and overstay of leave is a serious offence. It was argued that even during the pendency of the proceeding, the petitioner was again absent and thereby he can be deemed to be habitual absentee.

The Court noted that while the enquiry report was forwarded vide the second show cause notice dated May 06, 2014, the disciplinary authority had reached a conclusion that he agreed with the findings of the enquiry officer and held the charges to be proved. It was further observed by the Court that the response was sought for only on the proposed penalty which was contemplated as removal from service.

It was further noted by the Court that the requirement to give an opportunity to cross-examine the witnesses produced by the management and to adduce evidence as defence and also to have the assistance of a defence representative are some of the mandatory inbuilt mechanisms to ensure that the process is done fairly and transparently.

The Court held: “Be that as it may, this Court is of the view that even if the enquiry is held to be done in accordance with law, acting on the same by the Disciplinary Authority before giving a reasonable opportunity to the petitioner to submit his reply to the said report is not in accordance with law and accordingly the same is interfered with and the impugned order of removal from service dated 12.05.2014 is set aside.”

Thus, the Court directed that the petitioner shall be reinstated in service and he would not be entitled to any back wages, but would be entitled only for the notional benefits, including seniority and fitment in the appropriate scale of pay.

Citation: 2024 LiveLaw (Gau) 56

Case No.: WP(C)/9445/2019

Case Title: Machum Ahmed Laskar v. The State of Assam & 7 Ors.

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